Appeal 2007-0851
Application 10/385,213
in embodiments of the present invention. The hydrophilic component may
aid in the release of the active agent from the silicone matrices” (id. at 7).
The Specification also states that the “hydrophilic component generally does
not serve as a solvent for the active agent” (id. at 8). However, the
Specification does not require that the hydrophilic component aid in the
release of the active agent from the silicone matrices or exclude a
hydrophilic component that serves as a solvent.
In addition, claim 1 recites that “the internal phase is an aqueous
phase emulsion in said external phase.” Appellants argue that “the internal
phase comprises droplets within the external phase and forms an aqueous
emulsion in said external phase. In simple terms, the internal phase includes
water and the three components discussed above in droplet form emulsified
in the silicone matrix.” (Reply Br. 4.) We interpret claim 1 substantially in
accordance with the Appellants’ argument that the external and internal
phases together form the emulsion. However, we do not agree that the
internal phase necessarily contains four different components (hydrophilic
carrier, hydrophilic component, active agent, and water), because either the
hydrophilic carrier or the hydrophilic component can be water. The
Specification states that water is a hydrophilic carrier (Specification 8).
The preamble of claim 1 recites that the composition is a “topical
preparation.” We interpret the preamble as requiring that the composition be
capable of being topically applied. See In re Schreiber, 128 F.3d 1473,
1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997).
Claim 3 depends from claim 1 and requires the droplets to be about
0.1 µm – 2000 µm in diameter. Claim 22 depends from claim 1 and requires
4
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